OBLIGATION. – In its very Latin etymology, obligation in the active sense signifies the act of binding or constraining, while in the passive sense it denotes the state of being bound or constrained, or the bond or constraint itself. Its first figurative use occurred in Roman law, where it signified a juridical relationship by virtue of which a correlation of rights and duties arises between two or more subjects with respect to a determined performance (cf. Justinian, *Institutions*, 3, 13). In the active sense, it came to be synonymous with *creditum* and, in the passive sense, with *officium* (duty). It is in this latter sense that the term *obligation* entered the philosophical vocabulary, indicating the moral bond or necessity deriving from the ethical law.
I. PHILOSOPHY
In ethics (v.), it is the moral bond that the law (v.) produces in a free and responsible subject, determining within him the sentiment and the demand of duty. The concept of obligation, though already present in Greek thought, found its full philosophical elaboration only after Christianity, which studied it in the light of the doctrine of the human person and the transcendence and personality of God. The principal questions concerning obligation pertain to the subject capable of duty (the root of obligation), the binding force of the law (the cause and foundation of obligation), and finally the very essence of the sentiment of duty (the effect of obligation).1. Subject of obligation
The subject of obligation can only be a finite spiritual nature, which, by the perfect immanence of its operative life, is capable of directing itself toward the end that transcends it, through the progressive enrichment of its interior potentiality. Non-spiritual beings are incapable of obligation, for they essentially involve instrumentality and physical determinism (v.) (Sum. Theol., 1, 2-2a, q. 1, a. 2). God, by the fullness of His being, cannot be the subject of obligation (cf. I. Kant, *Critique of Practical Reason*, Italian trans. by F. Capra, 5th ed., Bari 1942, p. 95). The human person, as a finite spiritual nature, is radically capable of obligation; yet it is not its activity that can be constrained by obligation, but only that which depends upon free volitional determination. Therefore, in man, not only must activities subject to the physical mechanism of material nature be excluded, but also the essential inclinations toward his own perfection and happiness (*appetitus beatitudinis*). Such inclinations, in a certain sense, condition obligation and are not conditioned by it: they are, in fact, the very source of all volitional energy (ibid., q. 10, a. 1-2). Obligation finds in them its content (ibid., q. 94, a. 2), and imparts to them that value by which the finalistic tendency becomes, for the human spirit, a *dover essere* or obligation, and the love of the end is transformed, for the will, into the duty to know and realize the means that lead to the end. To explain obligation by means of immaterial inclinations is to destroy the concept: it would be nothing more than blind sentiment or impulsive instinct of power or vital creative impulse; physical determinism, therefore, never a source of duty, which necessarily leads one to transcend the subjective in order to establish an objective and binding principle.All doctrines that deny human spirituality and freedom thereby destroy the very possibility of obligation: materialism (v.), evolutionism, sensism (v.), positivism (v.), and sociologism. These attempt to explain the existence of duty by recourse to physical, biological, psychic, or social laws. H. Spencer, for example (The Data of Ethics, London 1879, § 46), speaks of association of ideas (v.), of the struggle for existence, and of heredity. Contemporary sociologists derive duty from “social pressure,” by which individual life would be entirely conditioned by the life of the “group,” the true subject of human activity (cf. L. Lévy-Bruhl, *La morale et les sciences des moeurs*, Paris 1903). Even those theories that attempt to safeguard the subjective value of the individual do not preserve the authentic concept of obligation which conditions duty upon interior sentiments or impulses. HOBBES, THOMAS (v.) sees in the egoistic sentiment of fear the motive for the contractual subjection to the absolute will of the sovereign. For A. Smith (*Theory of Moral Sentiments*, III, Edinburgh 1759, chaps. 4-6), reflection determines the passage from spontaneous and affective sympathy to the consideration of others’ approval and thus to the formulation of rules that exert an interior pressure called duty. M. Guyau (*Esquisse d’une morale sans obligation ni sanction*, Paris 1885) asserts that duty is nothing but an expression of vital power, which has become impersonal through the force-ideas that give such intoxication for struggle and risk as to make even the sacrifice of life appear “an expression of life” (p. 250). A. SCHOPENHAUER, ARTHUR (v.) in *Über die Freiheit des menschlichen Willens* defends the volitional determinism of character; and in *Über das Fundament der Moral* he affirms that justice and duty derive from the sentiment of pity (*Mitleid*), which will later be surpassed by charity. F. W. Nietzsche (v.) extols the vital power of the individual will: the morality of the common herd is founded upon duty, reducible to social pressure, whereas the morality of the superman (v.) finds its limits only in the full affirmation of his power to create values, even social ones. H. Bergson (*Les deux sources de la morale et de la religion*, Paris 1932) distinguishes two types of obligation: one appears in the stylized and closed form of the morality of the multitude, as an effect of social pressure; the other is the fruit of an intuition by which the subject aspires to transcendence according to the vital impulse that he feels immanent in himself and in all reality. Yet the root is always one: “toute morale, pression ou aspiration, est d’essence biologique” (p. 103).
2. Cause and foundation of obligation
The cause of obligation must be objective, categorical, and immanent to the person himself. Objective, inasmuch as no subject can bind itself and nothing empirical can express absolute and universal principles. Categorical, since any condition that does not absolutely engage the subject would be reducible to a subjective principle. Immanent, because any extrinsic cause would be either physical determination or coercion, both of which destroy the essential autonomy (v.) of the spirit and thus the very root of duty. In obligation, the human person (v.) expresses within itself a duality: it is at once binding and bound, an absolute and universal objective principle and a particular and contingent operative subject. It is binding insofar as, with its reason, it expresses the law (Sum. Theol., q. 90, a. 1). It is bound insofar as it feels the demand of duty. The question then arises of the “foundation” of obligation: how, namely, human reason can dictate an absolute form that categorically binds the will. Already in Greek philosophy, human reason was considered as a finite participation in the Universal Reason, and moral law as an expression«eternal law» (v. LAW). Christian philosophy has developed this concept in depth, considering personal reason and natural moral law as a participation in God’s Reason and eternal law (cf. St. Augustine, *De vera religione*, chaps. 30–31, nn. 54–58; *Summa Theologiae*, 1a–2ae, qq. 90–97). Not a few rationalistic trends exclude any reference to God, appealing instead to an impersonal universal Reason, that is, to the complex of principles and norms that, by their immediate evidence, impose themselves upon every intelligence (cf. F. Buisson, *Foi laïque*, Paris 1912). But impersonal reason is a conceptual abstraction; objective truth implies a relation to the absolute Legislator; it is a theoretical ideal intrinsically incapable of binding a free will: the impersonal cannot in fact impose itself upon the person, who, as such, expresses the highest dignity in the order of beings (cf. R. Le Senne, *Traité de morale générale*, 2nd ed., Paris 1947, pp. 571–572).
For Kant, practical reason is in itself legislative and law, pure universal and categorical normativity without content, a formal obligatory principle. Its validity imposes itself practically of itself; nor is it possible to establish its theoretical and empirical grounds without destroying it (*Critique of Practical Reason*, op. cit., pp. 37–38). It reveals to the person, subject to the mechanism of empirical feelings, his personality, by which he feels himself an end and not a means, autonomous and perfectly free (ibid., p. 104). The concept of God does not found the ought; rather, the ought founds II. For the postulate of God’s existence is founded upon the pure intention of duty, because by this the will becomes holy and acquires confidence in the Supreme Being: “only from a morally perfect (holy and good) will, and at the same time also omnipotent, can we hope for the highest good, which the moral law makes it our duty to set as the object of our striving, and therefore we can hope to attain it through harmony with this will” (ibid., p. 155). The Kantian position is not only unsustainable because it posits a pure ought without content, but above all because it leaves the ought itself without any foundation; it leads to (v.) pantheistic immanentism or to a pure phenomenological analysis of subjective consciousness. Pantheistic immanentism finds its perfect elaboration in Hegel’s (v.) panlogism (v.). It is objective Spirit that imposes itself upon subjective spirit: it is the power of the ethical State that binds individuals, and, by freeing them from their empirical subjectivity, brings them to the immediacy of Absolute Spirit (cf. *Grundlinien der Philosophie des Rechts*, Berlin 1821, part 3, nn. 148–149). The modern theory of values (v.) resumes the Kantian phenomenological analysis. Duty is the very law of freedom, which explains and affirms itself only in the act of positing ends or values: the normativity of consciousness is nothing but an essential moment in the development of the axiological cycle (cf. R. Polin, *La création des valeurs*, Paris 1944). For W. Stern (*Person und Sache*, III, Leipzig 1924), value is the end of all life, and hence introspection, by which the ego (v.) affirms its value by making all other values its own (p. 353), represents the content of the categorical imperative (p. 89). The followers of existential spiritualism seek to give the value-positing ego, which imposes itself upon the empirical ego, the transcendent foundation of God (cf. R. Le Senne, *Le devoir*, Paris 1937; id., *Traité de morale générale*, 2nd ed., 1947).
3. Effect of the ought
Moral law produces in the will an interior instance or duty, which binds it, though without necessity, in such a categorical way that disobedience gives rise in the subject to a sense of guilt, remorse, and fear of a sanction adequate to the absoluteness of the violated order (for the development of Greek thought on this subject, cf. C. Del Grande, *Hybris*, Naples 1947). According to empiricism, the feeling of duty is nothing but a derivative of egoism or of an innate altruistic sense: one remains on the plane of physical necessity, even if one admits the intermediary of a hypothetical imperative. Rationalism, on the other hand, resorts to logical necessity, whereby moral guilt is identified with error, and the freedom and responsibility of the human person are thereby sacrificed (cf. E. Zeller, *Vorträge und Abhandlungen*, III, Leipzig 1884, p. 231). Kant identifies the feeling of duty with respect for oneself, which moral law produces through its absoluteness upon the will. This is, first, a negative feeling of humiliation; it then becomes a positive feeling of esteem and admiration, that is, a recognition of the absolute dignity of one’s pure personality, perfectly free from empiricism. Respect produces interest in the law. Yet rationally one cannot explain the nature of this causality; it is admitted practically in the same way as one admits moral law itself (*Critique of Practical Reason*, op. cit., pp. 95–96). The concept of moral commitment or interest has been greatly developed by contemporary philosophy as an essential subjective moment of freedom, regarded as pure creative activity. To this corresponds the notion of aspiration, which Bergson posits as the instance produced by moral intuition and attraction, that is, as a “creative emotion” (Bergson, op. cit., p. 39).The causality of reason upon the will can be posited only on the plane of final causality. The will indeed can be moved only in function of its essential tendency toward the end, that is, in function of the love of the good (v.). The ought therefore is not a new form of causality, but is the good itself, which manifests itself not as merely expedient but in its absoluteness of right, whether this belongs to it intrinsically (natural law) or extrinsically (positive law). The absoluteness, which is revealed through reason, finds its correspondence in the tendency toward absoluteness, connate with the will: God, who dictates His will in the moral imperative, is already present in the will’s inclination toward Him. It is in the light of the categorical nature of natural law that the human person understands the entire metaphysical value of his nature and of his final tendencies: in the will there awakens a profound emotion, which is desire for the absolute, fear of losing it, commitment to attaining II. One certainly cannot reduce the ought to the hypothetical imperative, as if the good imposed itself as a useful end to be attained in function of happiness. Nor can one speak of a categorical imperative in the sense that the love of the end is excluded. The honestum imposes itself because it is itself in the light of the absoluteness of the end: the will must desire it because it is good, and it is not good because the will must desire II. The law, that is, does not operate directly upon the will, but upon the good, inasmuch as it places the good in an order of right, giving it the very character of divine absoluteness. This is expressed in the first moral principle, source of every moral duty: “Bonum est faciendum et malum vitandum” (*Summa Theologiae*, 1a–2ae, q. 94, a. 2).
Moral duty initiates a dialogue between the human person and God and among individual human persons. The human person senses his dignity and responsibility; he conceives his nature as a duty to be fulfilled, his life as a divine vocation directed toward the possession of God. He understands himself to be a participant and cooperator in the divine will, for without his free assent and unceasing effort at choice and self-overcoming, the eternal law of God cannot be realized in him or in society (Sum. Theol., 1a-2ae, q. 19, aa. 1–2). He feels that God, through His Providence, sustains the frailty of his nature; he knows that every good act he performs becomes worthy of merit and that God responds with just sanction to faithful correspondence with duty. In relation to other human persons, he establishes a reciprocity of duties and rights according to a positive order that, in the changing circumstances of time and place, expresses the absoluteness of the natural law. In the hypothesis of a supernatural order, the same natural law imposes upon the human person the duty of accepting the revealed law: the dialogue between man and God then becomes more perfect through the operative power of the theological virtues, and human society is elevated into the Communion of Saints (v.).
Christian contemporary personalism (v.) develops these principles, applying them especially to social life and pedagogy.
The concept of natural obligation (obligatio naturalis) concerns the capacity to incur civil obligations. In post-classical and Justinian Roman law, the category of natural obligations was broadened to include a series of relationships in which no obligatio arises, but—just as in the case of debts and credits of slaves—spontaneous performance excludes the recovery of what has been given (soluti retentio). This is also the typical effect of a natural obligation in Italian positive law: it does not compel performance, but if the person naturally obligated performs voluntarily, the legal order sanctions such performance by making recovery impossible. The soluti retentio, however, is not an effect that the legal order directly attaches to the natural obligation; rather, it must be traced to the voluntary performance, which is a subsequent and autonomous act distinct from the obligation itself. Considered in itself, the natural obligation receives sanction only from the social order. Nevertheless, a doctrinal current holds that the natural obligation is relevant even on the juridical plane; it is argued, in particular, that the law, through soluti retentio, shows itself to be taking account of relationships governed by other norms (social, ethical, customary), even if it accords only a weaker protection than that normally granted to an obligatory relationship. The concept of natural obligation is delimited both by that of civil obligation and by that of donation, even though voluntary performance shares characteristics of a liberal act: for there to be a natural obligation, the voluntary performance must not stem from mere benevolence or remuneration. Article 2034 of the Civil Code refers first of all to moral and social duties; examples of natural obligations include obligations extinguished by an unjust sentence of acquittal or for lack of evidence or false oath, the obligation of residual debt after composition (concordato), the obligation to provide a dowry, the voluntary confirmation and execution of null donations or testamentary dispositions, the obligation of the natural father to provide support for his unacknowledged natural children outside the cases envisaged by Article 279 of the Civil Code, and so on.
4. The object of the obligation: the prestation
The creditor’s right is directed toward the satisfaction of an interest concerning a good: this good is the prestation, which constitutes the object of the obligation. The prestation comprises a personal element and a patrimonial element. The former consists in the debtor’s conduct, the latter in the result of that conduct: thus, in obligations to give, the prestation consists in the debtor’s conduct, the result of which is to procure for the creditor a thing or a right; in obligations to do, it consists in the debtor’s conduct, the effect of which is to procure for the creditor an advantage deriving from human labor. Some authors, starting from the premise that the obligation is a bond of the person, see the prestation solely in the debtor’s conduct or act. Others see the object of the obligation in the result of the conduct, that is, in the good owed, which is represented by the thing in obligations to give and by the utility produced by human labor in obligations to do. Consequently, the prestation is not conceived as the object of the obligation but as a mere instrument or means capable of procuring the good.The requisites of the prestation are:
a) patrimoniality. The prestation must have an economic content, that is, be susceptible of patrimonial valuation. Otherwise, in case of non-performance, the creditor would lack the possibility of satisfying, through judicial proceedings, his claim against the debtor’s patrimony: the non-performance of the obligation would thus be practically devoid of juridical effects and would cease, therefore, to be a juridical obligation. From the prestation, however, one must distinguish the creditor’s interest in the prestation, which is likewise a necessary requisite: patrimoniality is a characteristic of the prestation considered in itself, whereas the creditor’s interest in the prestation, provided it is serious and socially appreciable, may also be of a moral, ethical, or affectionate nature (cf. Art. 1174 of the Civil Code: “The prestation that forms the object of the obligation must be susceptible of economic valuation and must correspond to an interest, even if non-patrimonial, of the creditor”).
b) Possibility. The obligation cannot have as its object a prestation that is impossible. Two types of impossibility are distinguished: absolute (or objective) and relative. Absolute impossibility obtains when the prestation cannot be rendered not only by the debtor but by anyone for natural causes (e.g., the thing has perished or pertains to things that are not naturally available) or juridical causes (e.g., the thing pertains to extra commercium). Relative impossibility obtains when the prestation cannot be rendered for reasons pertaining solely to the debtor, whereas it could be rendered by others. Only in the first case does the obligation not arise; in the second case it is converted into the prestation of id quod interest, that is, compensation representing the creditor’s interest in obtaining the original prestation or the sacrifice incurred in procuring it elsewhere. Even in the case of absolute impossibility, when the creditor was unaware without fault of the impossibility, the obligation arises but is transformed into the duty to pay damages. In this case, the amount of damages does not reflect the creditor’s overall interest in the original prestation but is limited to the so-called negative interest, that is, the damages and expenses incurred in reliance on the debtor’s promise.
c) Lawfulness. The prestation must be lawful, that is, not contrary to laws, public order, morality, or good customs.
d) Determination. Finally, the prestation must be determined or at least determinable by criteria and elements fixed in advance. Otherwise the prestation would be vague, and the debtor could limit it to a worthless amount.
5. Solidary obligations
These exist when there is a single performance but a plurality of subjects, and the relationship is constituted in such a way that, where there are multiple creditors (active solidarity), each of them has the right to collect the whole as if they were the sole creditor, or, where there are multiple debtors (passive solidarity), each of them is bound to render the whole as if they were the sole debtor. In the case of active solidarity, performance rendered to one of the creditors discharges the debtor also toward the other creditors; in the case of passive solidarity, performance rendered by one of the debtors discharges the others as well. In internal relations, the solidary obligation is divided among the various creditors or debtors, unless it was contracted exclusively for the benefit of one of them: the debtor who has paid may then seek from the co-debtors the share due from each. Solidarity, which may be founded either on the parties’ will or on the law and is generally presumed where there is a plurality of active or passive subjects, is inspired by a strengthening and greater protection of the right of credit.6. Divisible and indivisible obligations
Obligations are divisible or indivisible according as the performance to which they relate is or is not susceptible of being divided. Performances of giving are divisible when they concern a thing or a right capable of being divided into fractional shares (e.g., ownership, usufruct, emphyteusis). Performances of giving are, by contrast, indivisible when they concern a right not susceptible of division (e.g., servitude, pledge, mortgage). A performance of giving is indivisible when it consists of an act appreciated in its unity or leads to a result regarded as a whole; it is divisible, instead, when it consists in a continuing activity or leads to results of labor evaluated by quantity. A performance of not doing is indivisible, since by its nature it does not admit even partial completion of the forbidden act. The indivisibility of the obligation may arise not only from the objective characteristics of the performance but also from performances that would otherwise be divisible when so agreed by the parties or imposed by law. The effect of a divisible obligation is that, where there are multiple debtors or creditors, each debtor is bound to render only his share of the debt and each creditor may demand only his share of the credit. With respect to indivisible obligations, the principle holds that each debtor is bound for the whole, subject to recourse against co-debtors for reimbursement of the shares due from each, and each creditor may demand full performance of the obligation, though being obliged to indemnify the other creditors for their shares.7. Alternative, facultative, and generic obligations
Alternative obligations are those in which the bond includes two or more performances: only one of these is due, and the obligation is extinguished when that performance is rendered. The salient moment in such obligations is the so-called concentration, by which, at the time of performance or even earlier according to established criteria, the due performance is determined. Facultative obligations are those that envisage a single performance but allow the debtor to discharge the bond by rendering a different performance. Generic obligations are those in which the performance is not initially individualized but is indicated only by the genus to which it belongs, so that a determinate quantity from the indicated genus must be rendered. The most frequent type of generic obligation is that of an obligation to give a certain determinate or determinable quantity of things belonging to a genus.8. Sources of obligations
Sources of obligations are those juridical facts that result in the arising of the obligatory bond. In Roman law, in the most ancient period, they were contract and delict (Gaius, *Institutes*, 3.88). Later—it is debated whether by Gaius himself or by a postclassical author—it was recognized that there were facts capable of producing obligations not reducible to contract or delict; thus arose the category of *variae causarum figurae*, which appears in a passage of the Digest (44.7.1) attributed to Gaius. In Justinian’s *Institutes* (3.13.2), while contract and delict remained as sources of obligations, the *variae causarum figurae* were eliminated and replaced by two new sources: quasi-contract and quasi-delict.The Italian Civil Code of 1865, in article 1097, enumerated as sources of obligations “the law, contract, quasi-contract, delict, and quasi-delict.” It distinguished, that is, the sources of obligations, following the example of the French Code, according as they derived from the law or from a licit human act, as in contract and quasi-contract, or from an illicit act, as in delict and quasi-delict. This system substantially reproduced that of Justinian’s Institutes, adding the law—that is, the legal order—which, however, is in reality the primary source of every obligation and indeed of every juridical fact and stands on a different plane from contract, delict, quasi-contract, and quasi-delict, which presuppose II.
In the current Code, by contrast, there has been a return to the tripartite division found in D. 44.7.1. Article 1173 states: “obligations arise from contract, from an illicit act, or from any other act or fact capable of producing them in accordance with the legal order.” The change made by the present legislator was undoubtedly felicitous, for by eliminating the law as a source of obligations it emphasizes that, alongside contract and delict, there exist various legal phenomena (*variae causarum figurae*) not reducible to a common denominator and generating obligations. These phenomena, being altogether abnormal, are not susceptible of being fitted into rigid categories such as quasi-contract and quasi-delict.
9. Performance
This is the end to which the obligation tends and consists in causing the performance to reach the creditor: the juridical act by which the performance reaches the creditor is called payment or *solutio*.The recipient of the payment is the creditor, unless the creditor is incapable of disposing of it or is subject to sequestration. Payment must be made to a different person where the creditor has authorized another to receive it or where the law or judicial authority has otherwise disposed.
The performance must be rendered by the debtor; it may, however, be rendered by a third party where the creditor has not relied on the debtor’s personal qualities, as, for example, in certain obligations to do. The third party, having validly made the payment, succeeds to the legal position of the satisfied creditor and has against the debtor the same rights that belonged to the creditor.